Amicus Curiae Brief — Illinois v. Perkins

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Court, U.S,

' FILED

7 NOV 16 8

No. 88-1972 ScpH F. SPANIOL, JR,

CLERK*

In THE

Supreme Court of the United States

OcTOBER TERM, 1989

THE PEOPLE OF THE STATE OF ILLINOIS,

Petitioner,

Vv.

LLOYD PERKINS,

Respondent.

On Writ Of Certiorari To The Appellate Court

Of Illinois For The Fifth Judicial District

BRIEF FOR AMICI CURIAE

THE LINCOLN LEGAL FOUNDATION; LIVINGSTON

COUNTY, ILLINOIS; THE NATIONAL DISTRICT

ATTORNEYS ASSOCIATION; THE ILLINOIS SHERIFFS

ASSOCIATION; AND THE ASSOCIATION

OF STATE CORRECTIONAL ADMINISTRATORS

JOSEPH A. MORRIS,

The Lincoln Legal Foundation,

100 West Monroe Street,

Suite 1600,

Chicago, Illinois 60603,

(312) 606-0951,

Counsel of Record for Amici.

(Additional Counsel listed on inside front cover)

Midwest Law Printing Co., Chicago 60611, (312) 321-0220

uel

(Additional Counsel for Amici)

DONALD D. BERNARDI,

State’s Attorney of Livingston County, Illinois,

County Courthouse,

Pontiac, Illinois 61764,

(815) 842-1550,

FRED L. FOREMAN,

State’s Attorney of Lake County, Illinois, and

Chairman, National District Attorneys Association,

Ww 60085,

(708) 360-6644,

DANIEL M. HARROD,

Counsel to the Illinois Sheriffs Association,

107 East Eureka Street,

Eureka, Illinois 61530,

(309) 467-2381,

NANCY W. OWEN,

State’s Attorney of Coles County, Illinois, and

President, Illinois State’s Attorneys Association,

JACK E. YELVERTON,

National District Attorneys Association,

1033 North Fairfax Street,

Alexandria, Virginia 22314,

(703) 549-9222,

Of Counsel.

November 16, 1989.

—-—

TABLE OF CONTENTS

TABLE OF CONTENTS ...............e005:

TABLE OF AUTHORITIES .................

EEE OTT TTT ETTETT TES

The Lincoln Legal Foundation ............

Livingston County, Illinois ...............

National District Attorneys Association ...

Illinois Sheriffs Association ...............

Association of State Correctional

Nee cc ccccce

EUG r ee caacensecctcccceccccces

PREC E GE ehh eaccescccceccececce:

THE DECISION OF THE COURT BELOW

WOULD EFFECTIVELY PROHIBIT THE

NECESSARY AND VALUABLE USE OF

UNDERCOVER AGENTS IN PRESERVING

ORDER AND IN PREVENTING, DETECTING,

INVESTIGATING, AND PROSECUTING

DE ED cccccoccocccececccecs

Il.

THE COURT BELOW HAS MECHANICALLY

APPLIED THE MIRANDA RULE TO A SITU-

ATION IN WHICH THERE WAS NO CUSTO-

DIAL POLICE INTERROGATION, NO DAN-

GER OF COERCION, AND NO COMPELLED

SELF-INCRIMINATION ..................

III.

THE LOWER COURT’S CONFECTION OF A

SWEEPING PRIVILEGE AGAINST SELF-

INCRIMINATION IN THE SETTING OF NON-

INVESTIGATIVE CUSTODY PUTS THE FIFTH

AMENDMENT INTO ASYMMETRY WITH

THIS COURT’S APPLICATION OF THE

FIRST, FOURTH, SIXTH, AND FOURTEENTH

AMENDMENTS IN THE SAME SETTING ... 16

SUE bse Se seccsnscsdacnsdabdenseus 19

TABLE OF AUTHORITIES

Cases PAGE

Bell v. Wolfish, 441 U.S. 520 (1979) .......... 17

Block v. Rutherford, 468 U.S. 576 (1984) ...... 17

Harris v. New York, 401 U.S. 222 (1971) ..... 15

Hudson v. Palmer, 468 U.S. 517 (1984) ...... 16, 17, 18

Jones v. North Carolina Prisoners’ Union, 433 U.S.

See EE K60ck iacsekinsdeasnaeubenetioen< 16

Kuhlmann v. Wilson, 477 U.S. 436 (1986) ...... 17

Mathis v. United States, 391 U.S. 1 (1968) ..... 14

Michigan v. Tucker, 417 U.S. 433 (1974) ...... 15

Minnesota v. Murphy, 465 U.S. 420 (1985) .... 15

Miranda v. Arizona, 384 U.S. 436 (1966) .... passim

New York v. Quarles, 467 U.S. 649 (1984) ..... 15

O’Lone v. Estate of Shabazz, 482 U.S. 342 (1987) .. 17

Oregon v. Elstad, 470 U.S. 248 (1985) ........ 15

ili

Pell v. Procianier, 417 U.S. 817 (1974) ........ 16

People v. Carter, Cir.Ct., 11th Jud.Cir., Ill., No.

P.O, ED gnc caccecncasesds 12

People v. Johnson, Cir.Ct., 11th Jud.Cir., Ill., No.

87-CF-111 (Feb. 17, 1989) .............005- 12

People v. Latona, Cir.Ct., 15th Jud.Cir., Ill., No.

PTE £ncdoeddduennsbhubsndekeusdesened< 12

People v. Perkins, 176 Ill.App.3d 443, 531 N.E.2d

141, 126 Ill.Dec. 8 (5th Dist. 1988) ....... passim

Price v. Johnston, 334 U.S. 266 (1948) ........ 17, 18

Procunier v. Martinez, 416 U.S. 396 (1974) ..... 16

Rhode Island v. Innis, 446 U.S. 291 (1980) .... 14

Turner v. Safley, 482 U.S. 78 (1987) .......... 17

Wolff v. McDonnell, 418 U.S. 539 (1974) ...... 18

Constitutions

ae es SEE BD SS ciccccecescosvcese 16, 18

U.S. Const., Amendment IV ................. 16, 18

U.S. Const., Amendment V ................. passim

U.S. Const., Amendment VI ................. 17, 18

U.S. Const., Amendment XIV .............. 9, 16, 18

Ill. Const., Art. I, See. 11 (1970) ............. 2

Ill. Const., Art. VI, Sec. 19 (1970) ............ 4

> GE, GATE, Fae GON ce veccccsivececvescc 4

Other Authorities

Camp, CORRECTIONS YEARBOOK 18 (1989) ......

Carriere, The Dilemma of Individual Violence in

Prisons, 6 NEw ENG. J. ON Prison L. 198

SD beh eUi eee eed eee Eee was

Dix, Undercover Investigations and Police Rule-

Making, 53 Tex.L.Rev. 203 (1975) .........

Engel and Rothman, The Paradox of Prison Re-

form: Rehabilitation, Prisoners’ Rights, and

Violence, 7 Harv. J. L. & Pus. Pou. 413

SU : 60600066440006005065650 6005000060056

Flynn, Jails and Criminal Justice, in PRISONERS

IN AMERICA (Ohlin ed. 1972) ..............

Irwin, The Changing Social Structure of the Men’s

Prison, in CORRECTIONS AND PUNISHMENT

SE GO ED vedic cccnddandcdonnsese

Kamisar, Brewer v. Williams, Massiah, and Miran-

da: What Is “Interrogation”? When Does It

Matter?, 67 GEORGETOWN L.J. 1 (1978) .....

Lauder, FIGHTING VIOLENT CRIME IN AMERICA

RE te ee re eee

McCleery, Communication Patterns and Bases of

Systems of Authority and Power, in THEO.

RETICAL STUDIES IN SOCIAL ORGANIZATION OF

THE PRISON (Cloward et al. eds. 1960) ...

Scacco, RAPE IN PRISON (1975) ...............

Sherman and Hawkins, IMPRISONMENT IN AMERICA

ES Se

Toch, PoLice, PRisons AND THE PROBLEM OF VIO.

St Ee ochnndascnccegadcuadededesés<

Weiss and Friar, TeERRorR IN THE PRISONS (1974) .

White, Interrogation Without Questions: Rhode Is-

land v. Innis and United States v. Henry, 78

AT. GU CUED ceccccccccaccosece

3,9

No. 88-1972

In THE

Supreme Court of the United States

OCTOBER TERM, 1989

THE PEOPLE OF THE STATE OF ILLINOIS,

Petitioner,

Vv.

LLOYD PERKINS,

Respondent.

On Writ Of Certiorari To The Appellate Court

Of Illinois For The Fifth Judicial District

BRIEF FOR AMICI CURIAE

THE LINCOLN LEGAL FOUNDATION; LIVINGSTON

COUNTY, ILLINOIS; THE NATIONAL DISTRICT

ATTORNEYS ASSOCIATION; THE ILLINOIS SHERIFFS

ASSOCIATION; AND THE ASSOCIATION

OF STATE CORRECTIONAL ADMINISTRATORS

INTRODUCTION

The Lincoln Legal Foundation; Livingston County, IIli-

nois; the National District Attorneys Association; the IIli-

nois Sheriffs Association; and the Association of State Cor-

rectional Administrators; as amici curiae, submit this brief

in support of the Petitioner herein, the People of the State

of Illinois. Amici respectfully urge this Honorable Court

to reverse the decision of the Appellate Court of Illinois in

alien

the case at bar. Neither the United States Constitution

nor this Court’s holding in Miranda v. Arizona, 384 U.S.

436 (1966), commands so absurd a rule as that adopted

in this case below. If imposed as a blanket doctrine upon

correctional institutions, the lower court’s reading of the

Fifth Amendment would significantly impair the ability

of prison administrators to maintain order within their in-

stitutions and to investigate crimes occurring behind bars.

INTERESTS OF AMICI CURIAE

The Lincoln Legal Foundation

The Lincoln Legal Foundation (“LLF’’) is a national,

nonprofit, nonpartisan, public-interest law center which

undertakes litigation, administrative proceedings, legal

studies, and educational activities in matters promoting

political, economic, and civil liberties; preserving constitu-

tional government, including the separation and limitation

of governmental powers; and defending the rights of in-

nocent victims of crime.

LLF has a deep interest in the American criminal jus-

tice system and works to enhance its fairness and efficiency.

LLF is concerned that American prisons and other cor-

rectional facilities be operated so as to serve the objec-

tives of moral instruction, inculcation of respect for legit-

imate authority, and personal rehabilitation that are among

the goals of imprisonment of persons convicted of serious

crimes.! Absent those characteristics, prisons become, at

1 The Illinois Constitution, for example, commands that “All

penalties shall be determined . with the objective of restoring

the offender to useful citizenship.” Ill. Const., Art. I, Sec. 11 (1970).

olin

best, expensive holding pens in which criminals take sab-

baticals from careers in crime. At worst, they degenerate

into graduate schools of crime as, crowded together and

inadequately controlled, inmates prey upon each other,

hardening their hatred and contempt of society, and hon-

ing their criminal skills.2 Prisons should be communities,

not where violent crimes are commonplace, but where—

thanks to the regulation of inmate conduct and the foster-

ing of discipline that custodial conditions allow—the com-

mission of serious crimes is much less likely than in society

at large. Anything else would defeat the purpose of correc-

tion and undermine the criminal justice system as a whole.

Inmates desirous of rehabilitating themselves thus share

with the broad mass of innocent taxpayers a profound in-

terest in seeing to it that extraordinary conditions of

order and discipline prevail in correctional institutions.

Federal and State taxpayers across the land will invest

enormous sums over the course of the next few years to

2 One set of commentators have described the problem as follows:

nn Saen Spe 2 Nemes Spy offenders with

tion, Prisoners

413, 415 rd cing }

ONERS IN AMERICA 5 Oulin ed. 1972); and Seacco, Rape

Prison at 100 (1975). The 5 increasingly commands the at

tention of the general , and is noted by political leaders. See

Lauder, Ficutinc VIoLENT CRIME In America 127 (1985).

enfies

build new facilities ior the housing and correction of our

atin ol atten of eutted cinta 6 ;

tional facilities that are doomed not to correct work a

fraud upon the American people. LLF seeks, therefore, to

voice the public’s interest in opposing the imposition upon

prison administrations of judicial rules that, while safe-

guarding no civil liberty, frustrate penological objectives.

Livingston County, Illinois

The County of Livingston is a political subdivision of,

and a body politic within, the State of Illinois. It is es-

tablished, and derives its corporate powers, pursuant to

Article VII of the Illinois Constitution (1970). It is repre-

sented by its State’s attorney, a constitutional officer of

the State of Illinois chosen by the electors of the county

pursuant to Article V1, Section 19 of the Illinois Constitu-

tion (1970). The State’s attorney is both civil counsel to

the county and the prosecutor of crimes that occur within

it.

Livingston County’s population numbers approximate-

ly 40,000. Located 100 miles southwest of Chicago, it is

home to the Pontiac Correctional Center, a prison oper-

ated by the Department of Corrections of the State of

Illinois. The Pontiac prison is one of Illinois’s larger and

more secure correctional facilities, housing about 1,950 in-

mates, all of whom are adult males convicted of serious

crimes. When crimes are committed at the Pontiac prison,

it is the responsibility of Livingston County to investigate

and prosecute them. This results in a not insubstantial

burden upon the county’s courts, sheriff, and State’s at-

torney, and upon its taxpayers.

National District Attorneys Association

The National District Attorneys Association i. a non-

profit corporation and the sole national organization rep-

resenting state and local prosecuting attorneys in America.

Since its founding in 1950, NDAA’s programs of educa-

tion, training, publications, and amicus curiae activity

have carried out its guiding purpose of reforming the

criminal justice system for the benefit of all our citizens.

Illinois Sheriffs Association

The Illinois Sheriffs A tations bershi :

the 102 county sheriffs of the State of Illinois as well as

25,000 private individuals. The Association was organized

to promote and extend assistance to county sheriffs by

providing training seminars, scholarships, and educational

and various other community services.

Association of State Correctional! Administrators

The Association of State Correctional Administrators

(“ASCA”’) is a professional association whose membership

consists of the directors of the fifty State departments

of corrections, the Federal Bureau of Prisons, and the cor-

rectional systems of the District of Columbia, the Com-

monwealth of Puerto Rico, Cook County, Illinois, the City

of New York, New York, and the City and County of

Philadelphia, Pennsylvania. ASCA is concerned that, if the

holding in Perkins is not reversed, there will be grave,

far-reaching consequences for the ability of correctional

administrators to manage our nation’s prisons safely and

effectively.

aG=

STATEMENT

The facts of this case, as found by the courts below,

are set out by the Appellate Court of Illinois in its re-

ported decision, People v. Perkins, 176 Ill.App.3d 443,

444-446, 531 N.E.2d 141, 142-143, 126 Ill.Dec. 8, 9-10 (5th

Dist. 1988). The salient points are these: Respondent Per-

kins, while serving a prison term for a crime unrelated

to the murder at issue here, confided in a fellow inmate

that he had killed a man, and he described the event in

considerable detail. The fellow inmate—believing that

“people should not kill people’ —reported Perkins’s con-

fession to authorities. The confession as reported rang

true; the details corresponded to the knowledge that the

police had of the crime, and their nature was such that

it was unlikely that they could have been known to some-

one who was not, in fact, the killer. To nail down the case

the authorities asked the inmate-informant—who was not

compensated in any way for his cooperation—to return to

Perkins, this time accompanied by a law enforcement of.-

ficer under cover as a friend and fellow prisoner. They

were to seek repetition of the incriminating admissions.

As it turned out, by the time of the reunion Perkins was

housed in a county jail, awaiting trial on yet a third, com-

pletely unrelated charge. When the inmate-informant and

the undercover agent encountered Perkins and began chat-

ting with him, they did not read him his “Miranda

rights”. Perkins, prodded to discuss the murder by a

means no more coercive than being asked if he had ever

“done someone”, proceeded with apparent alacrity and in

great detail to recount the facts of the killing. An indict-

ment followed.

affe

The trial court granted Perkins’s motion to suppress the

evidence of his statements to the inmate-informant and

the undercover officer. The Appellate Court of Illinois af-

firmed, declaring that “{wje cannot permit police to sub-

vert the defendant’s fifth amendment right against self-

incrimination by questioning the defendant, through in-

formants and while he was in custody, without first warn-

ing him of his rights pursuant to Miranda.” Perkins,

supra, 176 Ill.App.3d at 450, 531 N.E.2d at 146, 126

Ill.Dec. at 13 (emphasis added).

That Perkins was “interrogated” while “in custody” ap-

pears to have been central to the Appellate Court’s rea-

soning. As it evaluated the facts of the case, it emphasized

its view that “although the defendant was incarcerated

on other charges at the time [the inmate-informant and

the undercover officer] elicited the incriminating state-

ments, he was ‘in custody’ for purposes of Miranda.”

Perkins, supra, 176 Ill.App.3d at 447, 531 N.E.2d at 144,

126 Ill.Dec. at 10. The Appellate Court also held that

Perkins conversation with the inmate-informant and the

undercover officer amounted to prosecutorial interrogation

under Miranda. Ibid.

Amici submit that the Appellate Court’s error lay in its

understanding of “interrogation” and “custody” within the

framework of Miranda. It is a mistake that, if perpetu-

ated, will do grave injury to the American penal system.

-§—

ARGUMENT

It is clear that Perkins’s self-incriminating statements

were thoroughly voluntary. They were altogether unforced,

and were made in an environment that was entirely free

of coercion. Perkins had not been accused of the murder

and had no reason to believe that he was suspected of

it. He did not believe that he was speaking with repre-

sentatives of authority or even with persons in superior

positions of any kind. He was under no illusions that the

statements he made were protected by any privilege.*

To the contrary, Perkins knew that his conversations

unprotected. Indeed, Perkins thought that the discussions

were themselves part of a criminal enterprise; he was

under the impression that he had joined a three-member

conspiracy to break out of jail. Perkins had puffed that

the jail was “rinky-dink” and that he “could arrange to

have someone smuggle in a gun.” Perkins, supra, 176

Ill.App.3d at 445, 531 N.E.2d at 143, 126 Ill.Dec. at 10.

Perkins made his incriminating statements during a sur-

reptitious, late-night rendezvous held in the jailhouse “af-

ter the other inmates went to sleep.” Jbid. Seen in this

light, Perkins’s utterances regarding the murder were de-

cidedly not a “confession” elicited under any kind of in-

terrogation. They were, instead, the words of a braggart

seeking to impress fellow inmates—in this instance, po-

tential criminal confederates; on another day, perhaps

potential cellblock victims or jail-gang followers—with his

: tres ocemang Ts Nato why for expan sary re

he was discussing with, for example, an attorney re-

~9—

fierceness, brutality, and willingness to go to any lengths

to achieve an end that he desired.

The Appellate Court of Illinois believed that “pressures

of interrogation”, 176 Ill._App.3d at 449, 531 N.E.2d at 145,

126 Ill.Dee. at 11, inhere in “custodial questioning”’, irre-

spective of the context of the custody in which the ques-

tioning takes place. That is a misreading of the teaching

of Miranda to which the facts of Perkins’s case give the

lie. The nature of the custodial circumstances in which

inculpatory admissions are made is crucial to a sound

assessment of the constitutional groundrules that control

their use as evidence. Custody of a non-investigative kind,

in which prisoners are held awaiting trial or while serv-

ing sentences, is as different from the setting of custody

immediately following arrest as is such interrogative sta-

tionhouse custody from normal society. That is a reality

that must be taken into account by the courts as they

apply the strictures of Miranda and of the Self-Incrimi-

nation Clauses of the Fifth and Fourteenth Amendments

to the world that is found behind prison walls.

THE DECISION OF THE COURT BELOW WOULD EF-

FECTIVELY PROHIBIT THE NECESSARY AND VALU-

ABLE USE OF UNDERCOVER AGENTS IN PRESERVING

ORDER AND IN PREVENTING, DETECTING, INVESTI-

GATING, AND PROSECUTING CRIME IN PRISONS.

Violence among prisoners is pandemic in men’s prisons

in contemporary America.‘ It is the prevalent method of

‘ See Engel and Rothman, The Paradox of Prison Reform: Reha

bilitation, Prisoners’ Rights, and Violence, 7 Harv. J. L. & Pus.

Pow. 413 (1985); Sherman and Hawkins, Imprisonment In America

(1981); Carriere, The Dilemma of Individual Violence in Prisons,

6 New Enc. J. Ow Prison L. 198 (1980); Toch, Powice, Prisons

Anp Tue Prosiew Or Vioitence (1977).

ety.® It is also a major factor in the arrangement and re-

arrangement of a prison’s internal structure of authority.*

particularly the murder of—correctional employees repre-

sents the highest level of danger in correctional systems.

In 1988, a total of 18,934 assaults were reported to have

been committed by inmates in Federal and State correc-

tional facilities across America; of these, 1,686 were di-

rected against prison staff and 17,248 were targeted against

fellow inmates. Camp, CoRRECTIONS YEARBOOK 18 (1989).”

While the identities of assailants of both inmates and

correctional personnel are frequently known, it is often

extremely difficult to obtain evidence that will support

nessed by prison staff members or inmates not complicit

in the crime. Because of the nature of the environment

in which such murders and other crimes of violence are

committed, corrections administrators must regularly rely

upon assailants to incriminate themselves by communicat-

ing to others their involvements in the crimes.

efforts to bully other inmates into behavior compliant with

the perpetrators’ wishes; at still other times they may

be instances of bragging to impress new inmates with the

perpetrators’ toughness and their immunity from correc-

tional control. Testimony from another inmate, a visitor,

or a person working undercover in a jail or prison is often

essential to the successful prosecution of such crimes—

and to send clear messages to those who might commit

other violent crimes that they will be held accountable

for their deeds.

A case precisely on point arises from the Pontiac prison,

situated within the jurisdiction of Amicus Livingston Coun-

ty, Illinois. On September 3, 1987, within the walls of the

Pontiac prison, someone accosted the superintendent, Robert

Taylor. Brutally beaten and stabbed ten times, Mr. Taylor

died. It fell to the State’s attorney of Livingston County

to investigate the murder and, if possible, to prosecute

those who committed it.

Knowing that a criminal gang had been surreptitious-

ly, but effectively, organized within the prison, and that

it saw itself in competition with prison authorities for con-

trol of the cellblocks, investigators sought intelligence as

to the gang’s connections, if any, with the crime. Knowing,

too, that the gang owed allegiance to gang chieftains re-

maining at large on the streets of Chicago, they arranged

for an inmate from another prison—thought by gang mem-

bers to be a loyal gang lieutenant, but in fact a police

informant—to visit the Pontiac facility, and while “wired”

with a judge’s approval to record conversations, to pose

as a conduit of information to the gang’s outside bosses.

In short order, gang leaders within the prison told the

informant in detail that they had murdered the superin-

tendent and how they had done so.

afin

A Livingston County grand jury handed up indictments

charging the gang leaders who had planned, ordered, and

executed the crime with first degree murder, conspiracy

to commit murder, and solicitation to commit murder. The

indictments were based on the admissions they had made

to the informant, and the informant’s testimony would

have been essential to the prosecution of the case. On

February 17, 1989, however, the trial court in that case—

the Circuit Court for the Eleventh Judicial Circuit of Illi-

nois, which includes Livingston County—ordered the evi-

dence of the admissions suppressed. People v. Johnson,

Cir. Ct., 11th Jud. Cir., Ill., No. 87-CF-111 (Feb. 17, 1989);

People v. Carter, Cir. Ct., 11th Jud. Cir., Ill., No.

87-CF-112 (Feb. 17, 1989). Both cases have been appealed

by the State to the Appellate Court of Illinois for the

Fourth Judicial District, where they now pend as Nos.

489-181 and 489-182.

In explaining its orders of suppression, the trial court

cited the decision of the Appellate Court of Illinois in the

instant case as controlling in those cases. Unless the deci-

sion below is reversed, therefore, the search for truth in

Johnson and Carter will be frustrated and justice in those

cases will be denied. Indeed, unless the decision below

is reversed, the people of Illinois and Livingston County

will be severely handicapped in their battle for the con-

trol of Pontiac prison.* That handicap, in turn, will afflict

® Pontiac prison’s situation is hardly unique. The lower court’s

yp tn —F ee Sp Bae te cont &

case involving an attempt an inmate

of the Dixon Correctional Center in Illinois io tie o killer to

Cir, CL, Lee Con Ill, No & yfriend. In that case, People v. Latona,

Cir. Ct Ill No. 89 CF 114, it is alleged that a man

serving at the Dixon prison after his conviction on charges unre-

lated to the killing he sought from behind bars to cause, solicited

(Footnote continued on following page)

= =

every correctional facility in America. The consequences

for Americans, within our prisons and without, will be

unspeakably tragic.

THE COURT BELOW HAS MECHANICALLY APPLIED

THE MIRANDA RULE TO A SITUATION IN WHICH THERE

WAS NO CUSTODIAL POLICE INTERROGATION, NO DAN-

GER OF COERCION, AND NO COMPELLED SELF-IN-

CRIMINATION.

As the uncontested facts before the Appellate Court of

Illinois make clear, the self-incriminating statements which

are the subject of this case were voluntarily made by Per-

kins during an unforced conversation thac he had with two

men whom he (incorrectly) assumed were simply fellow

inmates, and with whom he felt comfortable enough to

plan a jail escape. The conversation took place, not in

some jailhouse to which Perkins had been forcibly re-

moved for the purpose of interrogation or even trickery,

but in the cell block in which Perkins happened to be liv-

ing. The conversation began and ended in accordance with

his wishes. No visible signs of police or other authorities

were present. No threats or intimidation were used. No

coercion, direct or indirect, physical or psychological, was

applied by Perkins’s companions or felt by him.

It is plain from these facts that Perkins was not subject

to “custodial police interrogation,” if those words are to

8 continued

a fellow inmate whom he believed to be a “hit-man” to carry out

the murder. The “hit-man” turned out to be an undercover police

officer. Talks between the “hit-man” and the convict were recorded

electronically with judicial approval. The inmate, invoking the deci-

sion below in this case, has moved to suppress the evidence of

his statements.

fie

have any meaning which plausibly accords with reality.

Nonetheless, in an application of free-floating doctrine un-

constrained by facts or the necessity of making distinctions,

the lower court managed to hold that Perkins indeed had

been subjected to a “custodial police interrogation” re-

quiring the employment of the procedural safeguards out-

lined in Miranda. \n order that it arrive at that holding,

the court had to cobble together definitions of “‘custody”’

and “interrogation” from various of this Court’s prece-

dents.* Simply adding together these two factors, the

lower court apparently reasoned that

CUSTODY + INTERROGATION = MIRANDA

and thus arrived at its astonishing result.!°

This is a gross caricature of the reasoning behind Mi-

randa, which was that procedural safeguards—its famous

* The Appellate Court seemingly found in Mathis v. United States,

391 U.S. 1 (1968), this Court’s endorsement of the notion that in-

tody’ tor. 4 ot M Ag Perki +—~ + > 176 ill App. 34 at

y for of Mira ns, at

447, 531 NE Dd at 144, 126 Ill.Dec. at 11. Similarly, the Appellate

Court relied on this Court's opinion in Rhode Island wv. Innis, 446

U.S. 291 (1980), for the limi principal that in has

scarred whenever the police doo say anything that y should

know is reasonabl to elicit an incriminating response. No

other authorities were cited by the Appellate Court as helpful in

guiding its analysis on this point.

tors—each generally favo to a very broad application of the

Miranda have explicitly the kind of situation pre-

sented by Perkins. Each has had no difficulty in concluding that

Miranda would not apply. White, /nterrogation Without Questions:

Rhode Island v. Innis and United States v. Henry, 78 Micu.L.

Rev. 1209, 1246-1248 (1980); Kamisar, Brewer v. Williams

M and Miranda: What is sintervogation”Y When Dove I

67 GEORGETOWN L.J. 1, 45-69 (1 Dix, Undercover In-

vestigations and Police Rulemaking, 53 Tex.L.Rev. 203, 235-6

—15—

warning—may be necessary as a “practical reinforcement”,

Michigan v. Tucker, 417 U.S. 433, 444 (1974), of an indi-

vidual’s Fifth Amendment rights when he is subjected to

“incommunicado interrogation. . . . in a police-dominated

atmosphere” that “carries its own badge of intimidation,”

that “‘exacts a heavy toll in individual liberty and trades

on the weakness of individuals,” and that is inherently

likely “to subjugate the individual to the will of his exam-

iner.”” Miranda, 384 U.S. at 445, 457, 455, and 457. Only

under these particular conditions is Miranda’s per se rule

held to supplant the “totality of the circumstances” re-

quirement that self-incriminating statements actually must

be shown to be involuntary. See, e.g., Minnesota v. Mur-

phy, 465 U.S. 420 (1984).

Of course, none of these “compelling circumstances” that

the Miranda rule was created to combat has been shown

to exist here. Apparently taking the partial overthrow of

the “totality of the circumstances” test literally, the lower

court applied Miranda’s per se rule without undertaking

to inquire whether any of the circumstances surrounding

the “custody” and “interrogation” in cases of this kind

provide reason for Miranda’s application.

This Court’s precedents—especially its more recent deci-

sions—teach that the Miranda rule is to be applied flex-

ibly and intelligently, with some sensible regard for whether

the rule’s application to a particular kind of situation will

do anything to advance the rule’s policies.'' In reversing

the decision below, this Court ought to make clear that

the retreat into formalism and the rote application of per

se rules—“anodynes for the pain of reasoning’’—are not

substitutes for the hard job of judging cases.

sag v. Elstad, 470 U.S. 248 (1985); New York v. Quarles,

467 U.S. 649 (1984); Michigan v. Tucker, 417 U.S. 438 (1974); Har-

ris v. New York, 401 U.S. 222 (1971).

-16—

THE LOWER COURT’S CONFECTION OF A SWEEP-

ING PRIVILEGE AGAINST SELF-INCRIMINATION IN

THE SETTING OF NON-INVESTIGATIVE CUSTODY

PUTS THE FIFTH AMENDMENT INTO ASYMMETRY

WITH THIS COURT’S APPLICATION OF THE FIRST,

FOURTH, SIXTH, AND FOURTEENTH AMENDMENTS IN

THE SAME SETTING.

Although prison gates do not lock out the United States

Constitution, this Court has acknowledged that “imprison-

ment carries with it the circumscription or loss of many

significant rights.”” Hudson v. Palmer, 468 U.S. 517, 524

(1984). In Hudson, supra, 468 U.S. at 526, for example,

the Court held that “society is not prepared to recognize

as legitimate any subjective expectation of privacy that

a prisoner might have in his prison cell and that, accord-

ingly, the Fourth Amendment proscription against unrea-

sonable searches and seizures does not apply within the

confines of the prison cell.”

Protections of the First and Fourteenth Amendments

have been held to avail in prison settings, as in Procunier

v. Martinez, 416 U.S. 396 (1974), where regulations gov-

erning prisoner correspondence touching upon matters of

religion and politics were struck down. But even there

the Court declined to apply the standard of “strict scru-

tiny” with which it would test such governmental activity

in society at large, and instead it examined prison rules—

even in matters as sensitive as religious and political ex-

pression—against the yardstick of “reasonableness”.

Thus, in Pell v. Procunier, 417 U.S. 817 (1974), the

Court upheld prison rules prohibiting inmates from giv-

ing news media interviews inside the institution. In Jones

v. North Carolina Prisoners’ Union, 433 U.S. 119 (1977),

—j]7—

the Court refused to overturn bans imposed by prison ad-

ministrators against union meetings and bulk mail union

solicitations. In Bell v. Wolfish, 441 U.S. 520 (1979), the

Court sustained security rules that prohibited inmates

from receiving hardback books unless they were shipped

directly from publishers, bookstores, or book clubs. In

Block v. Rutherford, 468 U.S. 576 (1984), the Court

reviewed and approved the constitutional validity of prison

rules barring physical contact between prisoners and their

visitors. In Turner v. Safley, 482 U.S. 78 (1987), the Court

upheld regulations on prisoners’ outside correspondence.

And in O’Lone v. Estate of Shabazz, 482 U.S. 342 (1987),

the Court sustained a prison regimen notwithstanding the

fact that it limited the ability of Moslem inmates to take

part in weekly religious ceremonies.

Similarly, in Kuhlmann v. Wilson, 477 U.S. 436 (1986)

this Court found no infringement of the right to counsel

guaranteed by the Sixth Amendment where, after an ac-

cused’s arraignment, a police informant sharing his cell

listened to and reported his incriminating statements. The

Court’s approval of the informant’s evidence in Kuh!mann

is all the more striking in that, although it did not in-

volve interrogative custody, neither did it arise in the con-

text of post-conviction correctional custody.

Cases such as these evidence this Court’s understanding

that the places in which suspects and criminals are held,

not for interrogation but for custody or correction, are

a universe apart from normal society. Their populations

contain high concentrations of the wicked and violent.

Sound, constitutional management of prisons, therefore,

may well include even the “complete withdrawal of cer-

tain rights”, Hudson, supra, 468 U.S. at 524, if “justified

by considerations underlying our penal system.” Price v.

Johnston, 334 U.S. 266, 285 (1948). As it was put in Hud-

son, supra, 468 U.S. at 524, “{thhe curtailment of certain

rights is necessary, as a practical matter, to accommodate

a myriad of ‘institutional needs and objectives’ of prison

facilities, Wolff v. McDonnell (418 U.S. 539, 555 (1974),

chief among which is internal security. . . .”

The realities of prison life continue to justify the con-

straints on liberty that this Court has acknowledged as

appropriate. Just as the peculiar circumstances of correc-

tional, as opposed to interrogative, custody entail special

applications of the First, Fourth, Sixth, and Fourteenth

Amendments, so is a distinct—and limited—application of

the Fifth Amendment warranted in the same context. Just

as prisoners have no justifiable expectations of privacy

in their cells, so they have virtually no legitimate expec-

tations of privacy in their uncoerced custodial conversa-

tions. They have no privilege in communication with fellow

inmates, or with persons they believe to be their fellow

inmates. They have every right to be free from coerced

confessions, but no entitlement to blanket insulation of in-

tramural conversations from use in evidence.

~19—

CONCLUSION

When Perkins incriminated himself he was in jail, but

he was not undergoing “custodial police interrogation’’.

Miranda simply does not apply. Perkin’s statements were

entirely uncoerced and uncompelled. Therefore the State

committed no transgression against the strictures of the

Fifth Amendment which, in any event, should confer no

special privilege upon intramural communications by pris-

oners held in non-interrogative custody. Blanket prohibi-

tion of the use of informants and undercover agents in

prison populations would do nothing to protect the right

against self-incrimination. It would, however, demarcate

the end of imprisonment as a noble experiment in correc-

tion and the perfection of its transformation into a Hob-

besian hell, a war of everyone against everyone—inmates,

guards, and staff—unfortunate enough to be found within

prison walls. The judgment of the court below should be

reversed.

Respectfully submitted,